Tucson’s challenge to '2nd Amendment sanctuary' law is latest in local control saga

The city has long attempted to enforce gun laws stricter than the state’s, which have included mandating background checks for guns purchased on city property and destroying seized firearms. Over the years, those measures have been met with legal challenges from the state.

Three months ago, the state of Arizona declared itself a so-called Second Amendment sanctuary, and now the state and city could be headed for another legal battle.

Last week, Tucson Mayor Regina Romero and the Tucson City Council unanimously passed a resolution proclaiming that “federal laws, orders and acts that regulate firearms in a manner that is consistent with the requirements of the United States Constitution,” will “remain in full force and effect” within city limits “regardless of whether those laws, orders or acts are more restrictive or prohibitive than regulations established under the laws of this state.”

The resolution comes in direct response to House Bill 2111, which Gov. Doug Ducey signed into law in April.

Known as the Second Amendment Firearm Freedom Act, the law says the state of Arizona, which has some of the highest gun-related mortality rates in the country and earned an “F” rating from the Giffords Law Center to Prevent Gun Violence, is not beholden to upholding federal gun laws.

The legislation “Prohibits the state and political subdivisions from using any personnel or financial resources to enforce, administer or cooperate with any act, law, treaty, order, rule or regulation of the U.S. government that is inconsistent with any Arizona law regarding the regulation of firearms.”

The law effectively makes Arizona a Second Amendment sanctuary state.

According to the Associated Press, Arizona has now joined a growing movement of at least 1,200 local governments that have declared themselves sanctuaries insulated from state and federal gun laws since 2018 — when high-profile mass shootings prompted calls for stronger regulations.

In addition to Arizona, a handful of other state legislatures, including in Kentucky, Tennessee and Wisconsin, jumped on the idea this year when President Joe Biden, who earned “F” ratings from the National Rifle Association while in Congress, took office. During his campaign, Biden pledged to enact universal background checks and an assault weapons ban, among other measures.

When Ducey signed HB 2111 into law, describing it as an effort to protect “an enumerated right,” he said it “was a proactive law for what is possible to come out of the Biden administration.”

In opposition to the new law, Ward 6 City Councilman Steve Kozachik introduced the resolution to the council and Romero last month.

“I am hoping they see our resolution, which simply says that in the city of Tucson we are going to recognize federal gun laws. Let them challenge us,” he told the Arizona Daily Star. Kozachik said his aim with passing this resolution is to have the new law “declared unconstitutional and thrown out plain and simple, so we continue to have free rein to enforce federal gun laws locally.”

He wants to see it challenged on the grounds that “The state can’t pass something that is explicitly preempted by the U.S Constitution.”

And Kozachik is no stranger to preemption clauses.

A year after a would-be-assassin shot then-Arizona Congresswoman Gabrielle Giffords in 2011, Kozachik spearheaded an effort to get guns off Tucson’s streets through a buy-back program that resulted in the destruction of firearms.

Not long after, the Legislature passed a bill prohibiting municipalities from destroying guns and instead requires local governments to sell any guns that come into their possession to a federally licensed gun dealer. A lawsuit followed, and in 2017 the Arizona Supreme Court sided with the state, ruling that Tucson’s buyback program violated state law, and therefore a constitutional provision that says state gun regulations preempt local ones. If found noncompliant with state law, the city stands to lose half of its state shared revenue.

This time around, the new state law, which Kozachik said “drips with hypocrisy,” is testing the state’s ability to preempt current and future federal interpretations of the Second Amendment to the U.S. Constitution, which guarantees that “the right of the people to keep and bear Arms, shall not be infringed.”

‘A symbolic action’

City Attorney Mike Rankin, who drafted the city’s resolution to uphold federal gun laws, called the state’s Second Amendment sanctuary law a “symbolic action” designed to send this message to the federal government: “Don’t adopt any regulations that we think violate the Constitution and Second Amendment because those are not going to be enforced in Arizona.”

Rankin said it’s not exactly clear what will happen now that the city has passed the resolution, but that he has the authority to join Tucson into any future litigation that challenges the constitutionality of Arizona’s Second Amendment sanctuary law or one like it.

Charles Heller, communications coordinator for the Arizona Citizens Defense League, which backed House Bill 2111, said he doesn’t think the city’s resolution, which does not create policy, will do anything to change state law.

“They’re attempting to wave a flag no matter how weak that says they don’t like it,” Heller said. In his view, passing HB 2111 was a step in the right direction for Arizona, which has relatively relaxed gun laws, because “the federal government shouldn’t be enforcing unconstitutional laws, and we’re not going to help them.”

At the same time, the city's resolution notes that the "United States Supreme Court has explicitly rejected the idea that the states can nullify federal law."

Some advocates in favor of tightened gun regulations say enacting HB 2111 dealt a blow to gun violence mitigation efforts in Arizona.

“When you tie the hands of law enforcement and you confuse them, and they’re afraid to take action because they’re afraid they’ll be in violation of state law, it’s definitely going to have an immediate impact,” said Gerry Hills, founder and president of Arizonans for Gun Safety, which spoke out against HB 2111. “How are they supposed to combat gun crime? On the one hand, they tell them to get tough on crime, but then they tie their hands and take tools out of their toolbox when they can’t enforce federal law.”

She said Tucson’s resolution offers some encouragement.

And given the city’s history of contesting state gun laws, Hills said she is “not surprised it’s Tucson that comes out of the gate with this” resolution against the Second Amendment sanctuary law. “We’ll see what happens as it plays out in the courts.”